PLEADING, DRAFTING AND CONVEYANCING

APPLICATION FOR MAINTENANCE OF UNDER SECTION 125 (CRPC,1973)

SUBMITTED BY: VANSHDEEP SINGH

SECTION D

B.COM LL. B

296/16

SUBMITTED TO: MR. SANJEEV

SHARMA
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ACKNOWLEDGEMENT

I would like to express my special thanks of

gratitude to my DRAFTING, PLEADING AND
CONVEYANCING Teacher MR. SANJEEV
SHARMA for their able guidance and support in
completing my project.

I would also like to extend my gratitude to

Director DR. RATTAN SINGH for providing me
with all the facility that was required.

VANSHDEEP SINGH
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TABLE OF CONTENTS

• INTRODUCTION.........................................................................................4
• SECTION 125
OFCrPC.....................................................................................................4-6
• ESSENTIAL CONDITIONS FOR CLAIMING
MAINTENANCE......................................................................................6-9
• The person from whom maintenance is claimed must have sufficient
means to maintain the person or persons claiming maintenance
• Neglect or refusal to maintain
• The person claiming maintenance must be unable to maintain himself or
herself
• When the maintenance is claimed by wife from her husband
• FACTS............................................................................................................9
• DRAFTING APPLICATION UNDER SECTION 125 CrPC,
1973….…...………………………..........................................................10-12
• CONCLUSION............................................................................................13
• BIBLIOGRAPHY......................................................................................14
• WEB
RESOURCES..............................................................................................14
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INTRODUCTION

The ancient Hindu law enjoined that maintenance of certain relations is a

personal obligation. This continued to be the position under the Raj and this
continues to be the position in free India. Manu declared:

“The aged parents, a virtuous wife and an infant child must be maintained even
by doing hundred misdeeds.”1

Maintenance can be claimed under the respective personal laws of people

following different faiths and proceedings under such personal laws are civil in
nature. Proceedings initiated under Section 125 however, are criminal
proceedings and, unlike the personal laws, are of a summary nature and apply to
everyone regardless of caste, creed or religion.2 The object of such proceedings
however, is not to punish a person for his past neglect. The said provision has
been enacted to prevent vagrancy by compelling those who can provide support
to those who are unable to support themselves and have a moral claim to
support.3 Maintenance can be claimed either at the interim stage, i.e., during the
pendency of proceedings, or the final stage.

SECTION 125 OF CrPC:

Section 125 of the code of criminal procedure 1973, runs as follows:

125(1) If any person having sufficient means neglects or refuses to maintain-

a) His wife, unable to maintain herself, or

b) His legitimate or illegitimate minor child, whether married or not, unable
to maintain itself, or

1
Diwan Paras, Law of maintenance in India, Deep & Deep Publications, New Delhi, 1990.
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c) His legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
d) His father or mother, unable to maintain himself or herself,

a magistrate of the first class may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate as such magistrate thinks fit,
and to pay the same to such person as the magistrate may from time to time
direct:

Provided that the magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her majority, if
the magistrate is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means:

Provided further that the magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under the sub-section, order
such person to make a monthly allowance for the interim maintenance of his
wife or such child, father or mother, and the expenses of such proceeding which
the magistrate considers reasonable, and to pay the same to such person as the
magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim
maintenance and expenses for proceeding under the second proviso shall, as far
as possible, be disposed of within sixty days from the date of the service of notice
of the application to such person.

(2) any such allowance for the maintenance or interim maintenance and
expenses for proceeding shall be payable from the date of the order, or, if so,
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ordered from the date of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.

(3) if any person so ordered fails without sufficient cause to comply with the
order, any such magistrate may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided for levying fines, and may
sentence such person, for the whole or any part of each month’s allowance (for
maintenance or interim maintenance and expenses of proceeding as the case
may be) remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due
under this section unless application be made to the court to levy such amount
within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of
her living with him, and she refused to live with him, such magistrate may
consider any grounds of refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there is just ground for
so doing.

Explanation- if a husband has contracted marriage with another woman or

keeps a mistress, it shall be considered to be just for his wife’s refusal to live with
him.

(4) no wife shall be entitled to receive an allowance for maintenance or the

interim maintenance and expenses of proceedings as the case may be, from her
husband under this section if she is living in adultery, or, if without any
sufficient reason, she refuses to live with her husband, or if they are living
separately with mutual consent.
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(5) On proof that any wife in whose favour an order has been made under this
section is living in adultery, or that without sufficient reason she refuses to live
with her husband, or that they are living separately by mutual consent, the
magistrate shall cancel the order.

ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE

The analysis of section 125, CrPC brings out the following points:

(1) The person from whom maintenance is claimed must have sufficient
means to maintain the person or persons claiming maintenance:

The “means” contemplated in section 125(1) are not confined only to visible
means such as lands and other property or employment. If a person is healthy
and able-bodied he must be held to have means to support his wife, children and
parents.2 The courts have gone to the extent of laying down that the husband
may be insolvent or a professional beggar or a minor or a monk, but he must
support his wife so long as he is able-bodied and can eke out his livelihood.3

(2) Neglect or refusal to maintain:

The person from whom maintenance is claimed must have neglected or refused
to maintain the person or persons entitled to claim maintenance. Neglect or
refusal to maintain may be by words or by conduct. It may be express or implied.
Burden of proving is on the claimant.4 Ordinarily “neglect or refusal” may mean
something more than mere failure or omission. But where there is a duty to
maintain, mere “Failure of commission” may amount to neglect or refusal in the

2
In Re Kandasamy Chetty [(1929) 27 CrLJ 350]
3
Basanta Kumari v. Sarat Kumar [1982 CrLJ 485 (Ori)]
4
Dasarathi Ghosh v. Anuradha Ghosh [1988 CrLJ LJ 64 (Cal)]
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circumstances of the case. For example, mere failure to maintain a child who
has no will or volition of its own is “neglect or refusal” to maintain the child. 5 A
husband who makes it difficult for the wife to live with him and who fails to
maintain her when she lives elsewhere “neglects and refuses” to maintain the
wife. A husband cannot expect any self-respecting wife, in keeping with modern
ideas, to share the conjugal home with a mistress or another wife. Thus, the offer
of a husband who has taken a second wife, to maintain the first wife on
condition of her living with him cannot be considered to be a bona fide offer and
the husband will be considered to have neglected or refused to maintain the first
wife.6

If a second, third or even fourth marriage is permitted in Mohammedan law, a

Mohammedan male may indulge in that luxury. at the most he may not be liable
for offence of bigamy. However, a Mohammedan wife would surely be entitled to
live separately and claim maintenance solely on the ground that the very idea of
contracting a second marriage by her husband is abhorrent to her mind and
therefore the second marriage by her husband causes her mental agony and
cruelty. In such a situation husband cannot take shelter under his personal law
and claim immunity from paying the maintenance to his wife.7

(3) The person claiming maintenance must be unable to maintain himself or

herself:

Under section 125(1)(a) maintenance allowance cannot be granted to every wife

who is neglected by her husband or whose husband refuses to maintain her, but
can be granted only if the wife is hale and healthy and is adequately educated to

5
Chand Begum v. Haiderbaig [1972 CrLJ 1270]
6
ibid
7
Banabibi v. Sikandarkhan Umarkhan [1983 CrLJ 1382]
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earn for herself but refuses to earn and claims maintenance from her husband,
it has been held that she is entitled to claim maintenance but that her refusal to
earn under the circumstances would disentitle her to get full amount of
maintenance.8 The words “unable to maintain” only connote absence of means
or source to maintain herself. They have nothing to do with her potential
earning capacity.9

(4) Maintenance is claimed by wife from her husband;

a. She must not be living in adultery:

The words “living in adultery” have been almost uniformly interpreted as

indicating an adulterous course of life as distinguished from a single lapse of
virtue.10 A single act of adultery would not be enough to disentitle the wife to
maintenance. Because, hardships are bound to arise if the wife is totally
debarred from the remedy under section 125 due to a single lapse from virtue.
Further, making this provision it must have been thought that, to deprive her of
maintenance for an occasional lapse might force her to lead a sinful life and
would give her no chance to redeem herself. The words “living in adultery” have
now been consistently held to mean an outright adulterous conduct where the
wife lives in a quasi-permanent union with the man with whom she is
committing adultery. It would be wrong to consider mere friendship as
amounting to adultery within the meaning of section 125(4).

b. She must not refuse without just ground to live with her husband:

8
Abdulmunaf v. Salima [1979 CrLJ 172 (Kant)]
9
Vimal v. Sukumar Anna [1981 CrLJ 210 (Bom)]
10
Gopaldeo v. Ratni [(1929) 30 CrLJ 403]
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The husband contracting a second marriage is in itself a just ground for the
wife’s refusal to live with him as provided under section 125(3). This sub section
(4) only provides that she would not be entitled to any maintenance if she refused
to live with her husband without any sufficient reason11. What could be
considered as a sufficient reason for the wife’s refusal to live wither husband
would depend upon the facts and circumstances of each case.

c. She must not be living separately by mutual consent:

A divorced wife cannot be characterised as a wife living separately by mutual

consent. She is a person who lives separately from her former husband by virtue
of change in status consequent upon the dissolution of the marriage.12 It has
also been held that in case of a divorce by mutual consent if the wife had
relinquished her right to maintenance she cannot later claim maintenance.13A
clear and categorical finding, if given by the competent civil court, cannot be
overlooked or ignored or disregarded by the criminal court. 14 However, it has
been held that merely because the civil court comes to hold while directing
divorce that the wife is not entitled to maintenance, it would not deprive her of
her right to claim maintenance in a criminal court though the criminal court
though the criminal court is required to consider the civil court’s decision.

FACTS:

➢ The petitioner Smt. Anita Sahay (the petitioner) was tied in the knots of
holy matrimony in the year 2013, May 25th, at Lucknow to Shri. Sumit
Sahay, (the respondent) in front of friends and family.
➢ Everything was fine for the first few months, then the respondent started
showing his true colours.

11 P. Ramanatha Aiyar, Code of Criminal Procedure, Justice J.K. Mathur Ed., Vol.2, 7th Edn., Modern Publishers (India), Lucknow, 2000.
12
Ravindran Nair v. Sakunthala Amma [1978 CrLJ 1049 (Ker)
13
N.D. Basu, The Code of Criminal Procedure, S.K. Bose Ed., Vol.1, 9th Edn., Ashoka Law House, New Delhi, 2001.
14
ibid
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➢ The respondent has been very abusive towards the petitioner frequently
and has inflicted physical injury as well as mental trauma on the
petitioner.
➢ The respondent is a man of illicit behaviour and a drunkard. By the virtue
of his drunkenness he has insulted the petitioner in front of outsiders on
many occasions.
➢ On the morning of 6th October 2013, the respondent fiercely attacked the
petitioner and drove her out of the matrimonial house in front of
neighbours and passersby.
➢ Feeling humiliated, the petitioner left the matrimonial house and having
nowhere to go, went to live with her parents.
➢ Ever since the petitioner has been living and being maintained by her
parents, with the respondent never once having asked the whereabouts of
the petitioner.
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APPLICATION UNDER SECTION 125, CRIMINAL PROCEDURE

CODE,1973

IN THE FAMILY COURT (WEST), TIS HAZARI COURTS, DELHI

Maintenance Case. _______ of____________

In Re: -

A.B. w/o

C.D. __________ R/o .......Petitioner

Versus

C.D. s/o_______________

residing at

____________ .......Respondent

APPLICATION FOR MAINTENANCE BY WIFE UNDER SECTION 125

(1)(2), CR.P.C.
The petitioner above named respectfully states as under:

1. That applicant is legally married wife of the respondent; both of whom lived as

husband and wife for two years at________ and by such marriage a child was born

to them on________ and on the date this petition he is _____________months old.

2. That since the beginning of the marriage, the Respondent has become drunkard

and has been indulging in other immoral activities. To meet his debts, he
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demanded Rs. 50000 from applicant’s father by way of additional dowry and for

his failure to meet respondent’s demand, the applicant has been beaten and

subjected to cruelty. He (Respondent) was constantly threatening to kill the

applicant and was torturing her.

3. That the respondent had stopped paying anything for house hold expresses unable

to bear the cries of her starving minor son when the applicant demanded money

from the respondent on______________ she was tied by the respondent with a

pillar and a licensed gun was pointed towards her and was threatened to kill.

4. That ultimately applicant was turned out of her matrimonial house by the

respondent. Applicant and her minor son had to live on the mercy of neighbors’

for two days who helped her reach her parents’ house on _____________ and from

then towards the petitioner is staying in her parents’ house at_________ along with

her minor son.

5. That Meanwhile relatives of the applicant tried to persuade the respondent to

change his wayward life-style and lead a family life with dignity with his wife and

minor child two needed his father’s care and attention. But all the efforts to

change the Respondent’s attitude towards his wife and child were in vain.

6. That unable to maintain herself and her minor son, parents being old, and in an

utter state of poverty, the petitioner issued a legal notice to respondent

on____________ demanding separate maintenance for herself and her minor child,
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which was received by the respondent on ______________ but the respondent

neither replied the notice nor cared to come forward to maintain or make any

provision for the maintenance of his wife and minor child.

7. That respondent has got immovable assets in the form of lands and a house at

_____________ which fetches him monthly rent of Rs. ___________ in addition,

he earns about Rs. ___________ per month from his Telecommunication business

and has no other liabilities apart from the present applicant and he leads a lavish

lifestyle.

8. That petitioner is unable to maintain herself and the minor child being illiterate she

is unable to get herself any job.

In the circumstances the respondent has sufficient cause to live separately with her

child and prays that your Honour may be graciously pleased to order the

respondent to make a monthly allowance for maintenance of the applicant and her

minor child at the rate of Rs.__________ per month or at such rate as your Honour

may deem fit and proper. Form the date of this application.

Place: New Delhi

Dated: - DD/MM/YYY Petitioner

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CONCLUSION

Therefore, after the completion of this project we are in a position to

understand the concept of maintenance under the Code of Criminal Procedure,
1973 and draft the application for the same.

The application under section 125, CrPC for maintenance can be filed in the
court at the place where the applicant resides and can also be filed where
respondent resides. Fixed court fees are to be affixed on the application.15
Where a person having sufficient means refuses or neglects to maintain the
persons eligible as above: A Magistrate of the First Class may, upon proof
order such person to pay a monthly allowance at the rate not exceeding RS. 500
on the whole.

It is evident from the recent judicial decisions that the Indian courts have been
progressively liberal in deciding cases pertaining to maintenance. The bone of
contention however is whether a mistress can become entitled to receive
maintenance merely from the factum of living with a married man, coupled
with the dispute as to whether the bigamy is legally permissible. While it
appears from the decisions passed under the personal laws that the same may
be possible, judicial decisions pertaining to Section 125 continue to uphold the
view that maintenance can be claimed only by a lawfully wedded wife.

15
Agarwal, SP, Pleadings An Essential Guide, 2nd edition, pg- 323, Lexis Nexis, Haryana.
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BIBLIOGRAPHY

• Agarwal, SP, Pleadings an Essential Guide, 2nd edition, Lexis Nexis,

Haryana.

• Kolhatkar, Medha, Drafting, Pleading and Conveyancing, Lexis Nexis,

Haryana.

• N.D. Basu, The Code of Criminal Procedure, S.K. Bose Ed., Vol.1, 9th
Edn., Ashoka Law House, New Delhi, 2001.

• P. Ramanatha Aiyar, Code of Criminal Procedure, Justice J.K. Mathur

Ed., Vol.2, 7th Edn., Modern Publishers (India), Lucknow, 2000.

• R.V. Kelkar’s Criminal Procedure, K.N. Chandrasekharan Pillai Ed., 4th

Edn., Eastern Book Co., Lucknow, 2001.

• Ratanlal and Dhirajlal’s The Code of Criminal Procedure, Justice Y.V.

Chandrachud Ed., 15th Edn., Wadhwa and Co., Nagpur, 1997.

WEB RESOURCES

• http://www.legalserviceindia.com/article/Extra-marital-Relations-and-its-
Impact-on-children.html
• http://devgan.in/criminal_procedure_code/chapter_09.php#s125
• http://vyasa-kaaranam-ketkadey.blogspot.in/2011/12/maintenance-of-
parents-sec-125-of-crpc.html